Carroll et al. v. Natsis et al.
[Indexed as: Carroll v. Natsis]
Ontario Reports Ontario Superior Court of Justice Corthorn J. May 26, 2020 151 O.R. (3d) 94 | 2020 ONSC 3263
Case Summary
Civil procedure — Discovery — Production and inspection of documents — Confidentiality orders — Settlements — Motion by plaintiffs in personal injury action for redaction of the amount of the settlement and advance payments made dismissed — Plaintiffs had not established that the important public interest in settlement privilege was at serious risk if a redaction order was not made or that privacy of litigants was at serious risk of harm if a redaction order was not made — The extensive media attention was not a measure of the public interest in the proceedings.
Motion by the plaintiffs in personal injury action for the redaction of the amount of the settlement and advance payments made. The plaintiffs were the victim's widow and children. The plaintiffs also requested the redaction of six exhibits attached to the supporting affidavits that included reports prepared by the plaintiffs' expert with respect to the claims for damages for past and future loss of dependency. When the actions were commenced, all three children were minors. By the date of settlement, two children were adults.
Held, the motion should be dismissed.
The plaintiffs' evidence did not meet the high standard required for a sealing or redaction order to be granted. The plaintiffs had not established that the important public interest in settlement privilege was at serious risk if a redaction order was not made. The settlement was reflected in the Minutes, a document signed on behalf of all parties to the actions. The lone defendant who was not contributing to the monetary component of the settlement was aware of its terms. The plaintiffs had not established that the important public interest in confidentiality clauses in settlement agreements was at serious risk if a redaction order was not made since the terms of the settlement did not include a confidentiality clause. The plaintiffs also failed to establish that the important public interest in the privacy of litigants was at serious risk of harm if a redaction order was not made. The extensive media attention was not a measure of the public interest in the proceedings.
Athwal (Litigation representative of) v. Mather, [2019] A.J. No. 1166, 2019 ABQB 676 (Q.B.); Leitch v. McNaughton, [2014] O.J. No. 6623 (S.C.J.); McDonald v. Queen of the North (Ship), [2009] B.C.J. No. 972, 2009 BCSC 646, 178 A.C.W.S. (3d) 99 (S.C.); Mohamud v. Cannon, [2012] O.J. No. 4119, 2012 ONSC 4942 (S.C.J.); Renaerts (Guardian ad litem of) v. Korn, [1998] B.C.J. No. 3223, [1999] 9 W.W.R. 499, 64 B.C.L.R. (3d) 131, [2004] CLLC para. 220-034, 37 C.P.C. (4th) 146, 90 A.C.W.S. (3d) 174 (S.C.); Schuringa (Litigation guardian of) v. Trent Lakes (Municipality), [2016] O.J. No. 6461, 2016 ONSC 7882, 95 C.P.C. (7th) 393 (S.C.J.); Van Every (Litigation guardian of) v. Findlay, 2019 ONSC 6854, [2019] O.J. No. 6020, 2019 ONSC 6854 (Div. Ct.), revg [2018] OJ No 3611, 2018 ONSC 4213 (S.C.J.), consd
H. (M.E.) v. Williams (2012), 108 O.R. (3d) 321, [2012] O.J. No. 525, 2012 ONCA 35, 346 D.L.R. (4th) 668, 287 O.A.C. 133, 15 R.F.L. (7th) 37, 212 A.C.W.S. (3d) 735 (C.A.); Milne (Next Friend of) v. Pfizer Inc., [2005] A.J. No. 507, 2005 ABQB 236, 51 Alta. L.R. (4th) 52, 379 A.R. 345, 28 C.P.C. (6th) 345, 139 A.C.W.S. (3d) 656 (Q.B.), distd
Other cases referred to
Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, [1996] S.C.J. No. 38, 139 D.L.R. (4th) 385, 203 N.R. 169, 182 N.B.R. (2d) 81, 110 C.C.C. (3d) 193, 2 C.R. (5th) 1, 39 C.R.R. (2d) 189, 66 A.C.W.S. (3d) 444, 32 W.C.B. (2d) 273, EYB 1996-67336, JE 96-2090; D.B. Trust (Trustees of) v. J.B. (Litigation guardian of) (2009), 97 O.R. (3d) 544, [2009] O.J. No. 2693, 81 C.P.C. (6th) 107, 50 E.T.R. (3d) 50, 179 A.C.W.S. (3d) 234 (S.C.J.); Donovan v. Sherman Estate, [2019] O.J. No. 2373, 2019 ONCA 376, 47 E.T.R. (4th) 1 (C.A.); Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, [2005] B.C.J. No. 5, 2005 BCCA 4, 249 D.L.R. (4th) 416, [2005] 7 W.W.R. 1, 207 B.C.A.C. 54, 40 B.C.L.R. (4th) 245, 17 C.C.L.I. (4th) 180, 5 C.P.C. (6th) 278, 136 A.C.W.S. (3d) 233 (C.A.); Hill v. Church of Scientology of Toronto (1995), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, 126 D.L.R. (4th) 129, 184 N.R. 1, J.E. 95-1495, 84 O.A.C. 1, 25 C.C.L.T. (2d) 89, 30 C.R.R. (2d) 189, 56 A.C.W.S. (3d) 495, REJB 1995-68609; Hollinger Inc. (Re) (2011), 107 O.R. (3d) 1, [2011] O.J. No. 3977, 2011 ONCA 579, 283 O.A.C. 264, 84 C.B.R. (5th) 79, 341 D.L.R. (4th) 182, 12 C.P.C. (7th) 29, 207 A.C.W.S. (3d) 234 (C.A.); Jane Doe 72511 v. Morgan (2018), 143 O.R. (3d) 277, [2018] O.J. No. 5741, 2018 ONSC 6607, 53 C.C.L.T. (4th) 289 (C.A.); Jones v. Tsige (2012), 108 O.R. (3d) 241, [2012] O.J. No. 148, 2012 ONCA 32, 251 C.R.R. (2d) 124, 287 O.A.C. 56, 346 D.L.R. (4th) 34, [2012] CLLC para. 210-012, 89 C.C.L.T. (3d) 221, 6 R.F.L. (7th) 247, 96 B.L.R. (4th) 1 (C.A.); Leonard (Litigation guardian of) v. Saint-Vincent Hospital, [2018] O.J. No. 308, 2018 ONSC 370, 30 C.P.C. (8th) 436 (S.C.J.); N. (F.) (Re), [2000] 1 S.C.R. 880, [2000] S.C.J. No. 34, 2000 SCC 35, 188 D.L.R. (4th) 1, 255 N.R. 250, J.E. 2000-1465, 191 Nfld. & P.E.I.R. 181, 146 C.C.C. (3d) 1, 35 C.R. (5th) 1, 46 W.C.B. (2d) 473, REJB 2000-19336; Sable Offshore Energy Inc. v. Ameron International Corp., [2013] 2 S.C.R. 623, [2013] S.C.J. No. 37, 2013 SCC 37, 359 D.L.R. (4th) 381, 446 N.R. 35, J.E. 2013-1134, 332 N.S.R. (2d) 1, 22 C.L.R. (4th) 1, 37 C.P.C. (7th) 225, [2013] I.L.R. para. G-2526, 228 A.C.W.S. (3d) 78, EYB 2013-223434, 2013EXP-2138
Statutes referred to
Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1, ss. 87(7)(c), (8), (9), 134(11) Constitution Act, 1867, 30 & 31 Vict., c. 3, s. 96 Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 11(2), 137(2) Criminal Code, R.S.C. 1985, c. C-46, s. 486.4 [as am.] Infants Act, R.S.B.C. 1996, c. 223, s. 40 [as am.] Minors Property Act, S.A. 2004, c. M-18.1, s. 4 [as am.], (2) Youth Criminal Justice Act, S.C. 2002, c. 1, s. 110 [as am.]
Rules and regulations referred to
Alberta Rules of Court, Alta. Reg. 124/2010 [as am.], rule 2.19 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04, 7.08, (1), (5), 25.06(9), 37.12(1), 37.12.1(1) Supreme Court Civil Rules, B.C. Reg. 168/2009 [as am.], rule 20-2(3), (17), (18)
MOTION for a redaction order.
Counsel: Howard Yegendorf and Joseph Doris, for plaintiffs. Christopher Reil, for defendant Christy Natsis. Morgan Martin, for defendant 7121652 Canada Inc. Jennifer T. Arrigo, for defendant Rinaldo Hair Stylist Limited.
CORTHORN J.:
1. Introduction
[1] The open court principle is "the very soul of justice". Public openness is required in both the proceedings of the dispute and the material that is relevant to its resolution. By adhering to the open court principle, courts guarantee that justice is administered in a non-arbitrary manner.
[2] In some criminal and child protection proceedings, there are exceptions to the open court principle. Those exceptions are based in statute. For example, the publication of the names of young offenders is prohibited. In criminal matters involving charges of or related to sexual assault, publication of the name of the complainant can be prohibited. In child protection matters, proceedings are conducted in camera and publication of the names of the parties, including the child who is the subject of the proceeding, is prohibited.
[3] There are also exceptions to the open court principle in civil proceedings. In some cases, litigants may be referred to by either a pseudonym or their initials. Those exceptions are based in the common law.
[4] These exceptions reflect the important public interest in the privacy of litigants and other participants in certain types of proceedings.
[5] The administration of justice includes the oversight of settlements reached on behalf of persons under disability, including minors. These matters do not fall within the scope of the exceptions to the open court principle referred to above. The court's jurisdiction to oversee settlements of this kind was historically based in its parens patriae jurisdiction. In more recent times, this jurisdiction is anchored in statute and/or regulation.
[6] When seeking court approval of a settlement, plaintiffs in personal injury matters frequently request a sealing or redaction order. Most approval proceedings are, however, not subject to either a sealing or redaction order.
[7] This court has the discretion, under statute, to grant a sealing or redaction order. The test to be applied when exercising that discretion is, however, found in the common law. There is no statute or procedural rule mandating that court proceedings involving parties under disability be subject to confidentiality or sealing orders. Absent an express statutory test, the court must be guided by the common law.
[8] The Supreme Court of Canada describes the evolution of the common law as follows: "Historically, the common law evolved as a result of the courts making those incremental changes, which were necessary in order to make the law comply with current societal values."
[9] The common law related to individual privacy rights has evolved in this century. In 2012, the Ontario Court of Appeal recognized the tort of intrusion upon seclusion. Recognition of this cause of action amounted "to an incremental step that is consistent with the role of [the Court] to develop the common law in a manner consistent with the changing needs of society". In 2018, Gomery J., of this court, recognized the existence of the tort of public disclosure of private facts.
[10] The limited circumstances in which courts grant a sealing or redaction order as part of a settlement approval proceeding demonstrate that, in the face of changing societal values, a tension has developed between fidelity to the open court principle and the protection of individual privacy.
2. Background
[11] In September 2019, a settlement was reached in two actions arising from a tragic motor vehicle collision that occurred on March 31, 2011 (the "Settlement" and the "Actions", respectively). Bryan Casey suffered fatal injuries in the collision. The defendant, Christy Natsis was charged with several criminal offences. In May 2015, she was convicted of (a) impaired operation of a motor vehicle causing death, and (b) dangerous operation of a motor vehicle causing death.
[12] It was not until early 2018, following the dismissal of Dr. Natsis' appeal from the trial decision, that the parties to the Actions were able to move forward with the litigation. To the credit of everyone involved, they worked collectively and diligently to resolve the Actions.
[13] The Plaintiffs include Bryan's widow, Leeellen Carroll, and the couple's three children, Ryan, Gabriel, and Muiredach (the "Plaintiffs"). When the Actions were commenced, all three children were minors. By the date of settlement, Regan and Gabriel were adults. The sole remaining minor plaintiff is 16-year old Muiredach.
[14] The Plaintiffs brought this motion, on notice to the Defendants, for approval of the settlement of Muiredach's claims ("Muiredach's Settlement"). The relief originally requested on the motion included an order that "the materials filed in support of [the] Motion be treated as confidential, sealed, and not form part of the public record".
[15] The parties requested a single order approving Muiredach's Settlement. At the court's direction they obtained an order consolidating the Actions. That step permitted Muiredach to enforce the order, if necessary, against the defendants contributing to the settlement of his claims. Those defendants are: Dr. Natsis, the lone defendant in one of the actions; and the Crazy Horse Stonegrill Steakhouse and Saloon (the "Steakhouse"), one of two defendants in the other action. All claims against Rinaldo Hair Stylist Limited, a co-defendant in the second action, were dismissed without costs.
[16] Muiredach's Settlement was approved, and a single order to that effect was issued and entered. In addition, a temporary sealing order was granted. The parties were given an opportunity to consider whether the request for a permanent sealing order would be maintained or alternative relief would be requested. In either event, the parties had the opportunity to file additional materials.
[17] A permanent sealing order is no longer requested. Instead, the Plaintiffs request an order redacting references to specific monetary figures from the supporting affidavits in the public record. The Plaintiffs seek the redaction of the amount of each of the Settlement, Muiredach's Settlement and advance payments made.
[18] In addition, the Plaintiffs request the redaction of six exhibits attached to the supporting affidavits. Those exhibits include reports prepared by the Plaintiffs' expert with respect to the claims for damages for past and future loss of dependency. The Plaintiffs ask that full copies of the supporting affidavits, including exhibits, remain sealed in the court file.
[19] The Plaintiffs were the only parties to file supplementary materials in support of the redaction order. Dr. Natsis supports, and the Steakhouse takes no position on, the request for a redaction order. Neither defendant filed any responding materials on the motion.
[20] The Plaintiffs' recognize that a sealing order is an exceptional remedy. They submit that it is appropriate to grant a redaction order because such an order (a) is minimally restrictive, and (b) prevents serious risk to three important public interests. Those interests are settlement privilege, confidentiality clauses found in settlement agreements, and the privacy of litigants.
[21] Subsection 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA") provides that "[a] court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record". The CJA does not prescribe parameters as to when a sealing order may be granted. Those parameters are found in the case law.
[22] Here, the court must determine whether it is appropriate to conceal from the public information about both the Settlement and Muiredach's Settlement. First, I will review the law with respect to sealing orders generally. Thereafter, I consider the application of that law to motions for approval of a settlement on behalf of a party under disability. Lastly, I apply the relevant principles to the Plaintiffs' request for a redaction order.
3. Sealing Orders Generally
[23] In Sierra Club, the Supreme Court of Canada set out a two-part test for a sealing order to be granted. At para. 53, the court said that a sealing order should only be granted when
(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects.
[24] The court identified several elements in the first part of the test. For example, the "risk in question must be real and substantial, in that the risk is well grounded in the evidence, and poses a serious threat to the commercial [or other] interest in question": at para. 54.
[25] As another example, the interest at stake must be one which can be expressed in terms of a public interest: at para. 55. The private interests of the litigants, on their own, are not enough to warrant a sealing order. If there is no general principle at stake, then there can be no "important interest" for the purpose of the first part of the test: Sierra Club, at para. 55. The open court principle yields only if "the public interest in confidentiality outweighs the public interest in openness" (emphasis added): N. (F.) (Re), [2000] 1 S.C.R. 880, [2000] S.C.J. No. 34, 2000 SCC 35, at para. 10.
[26] Media exposure or interest is not an impartial measure of public interest in a matter: Sierra Club, at paras. 82, 85.
[27] Under the first part of the test, the court is required to consider whether there are reasonable alternative measures available and to restrict the scope of the order, if made, as much as is reasonably possible while still preserving the public interest at stake: Sierra Club, at para. 57. An order which represents a "fairly minimal intrusion" into the open court principle may not have significant deleterious effects on that principle: at para. 79. If the salutary effects of a minimally intrusive order outweigh its deleterious effects, then it is reasonable to make the order: at para. 91.
[28] If a sealing order is granted, a "comeback clause" may be included to permit any party to the action to return to the court for re-assessment of the need for a sealing order: Schuringa (Litigation guardian of) v. Trent Lakes (Municipality), [2016] O.J. No. 6461, 2016 ONSC 7882, 95 C.P.C. (7th) 393 (S.C.J.), at para. 57; and Hollinger Inc. (Re) (2011), 107 O.R. (3d) 1, [2011] O.J. No. 3977, 2011 ONCA 579 (C.A.), at para. 9.
[29] Requests for sealing orders are frequently made on a motion or an application for approval of a settlement on behalf of a party under disability. Motions and applications of this kind are governed by provincial statutes and regulations. Despite inter-provincial differences, common themes emerge from the case law. Those themes are identified in the discussion of the case law that follows, starting with the law in the Province of Ontario.
4. Court Approval and Sealing Orders -- Ontario
a) Procedural considerations
[30] The plaintiffs bring their motion under rule 7.08(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"). It provides that "[n]o settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge". In practice, the majority of motions for approval are heard in writing because they are on consent: rule 37.12.1(1). Applications for approval proceed to a hearing unless leave is granted to proceed in writing: Leonard (Litigation guardian of) v. Saint-Vincent Hospital, [2018] O.J. No. 308, 2018 ONSC 370, 30 C.P.C. (8th) 436 (S.C.J.).
[31] On a motion or an application for approval of a settlement on behalf of a party under disability, the court has the discretion to order that (a) the motion record be served on the Children's Lawyer; and (b) the Children's Lawyer provide a written report setting out their objections and recommendations, if any, with reasons, with respect to the proposed settlement: rule 7.08(5).
[32] To date, the Children's Lawyer has not participated in the motion for approval of Muiredach's Settlement. No order was made pursuant to rule 7.08(5).
[33] In Leitch v. McNaughton, [2014] O.J. No. 6623 (S.C.J.), Grace J. heard a motion, in writing, for approval of a settlement on behalf of an adult plaintiff under disability. In addition, approval was requested of the amount to be paid by the plaintiff under disability towards the solicitor-client account delivered by their counsel.
[34] At paras. 12 and 13, Grace J. concluded that if a sealing order in perpetuity is requested, then
(a) the motion record should be served on the Office of the Public Guardian and Trustee (when the party under disability is an adult) or the Office of the Children's Lawyer (when the party under disability is a minor); (b) the motion must be returnable in court and oral argument made; and (c) consideration must be given as to whether a wider notice of the motion is required (i.e., including the public and/or the media).
[35] Grace J. concluded that such a process is required because a request for a permanent sealing order gives rise to factually and legally complex issues and the relief, if granted, amounts to an exceptional order: para. 13.
[36] At paras. 9 and 11, Grace J. provided guidance on the procedure to be followed when either a sealing or redaction order is requested. First, the motion record is to be filed in a sealed envelope, with a request that it be opened only by the presiding judge. Second, if the request is for a redaction order, then both a full copy of the motion record (in a sealed envelope) and a copy of it with the proposed redactions are to be filed. Grace J. emphasized that it is the responsibility of counsel to identify, in advance, the information to be redacted.
b) Motions and applications under rule 7.08
[37] The Plaintiffs rely on three decisions from Ontario as examples of either a sealing or redaction order being granted on a motion made pursuant to rule 7.08 of the Rules.
[38] First, the Plaintiffs rely on the Divisional Court decision of Van Every (Litigation guardian of) v. Findlay, [2019] O.J. No. 6020, 2019 ONSC 6854 (Div. Ct.) ("Van Every (2019)"). In April 2016, in a separate proceeding, a settlement of the infant plaintiff's claim for Statutory Accident Benefits was approved by the court. The approval order included a term that the court file be sealed.
[39] The infant plaintiff then pursued a claim against his former lawyer, Findlay, for negligent representation with respect to the claim for accident benefits. Findlay brought a motion to vary the sealing order in the related proceeding. He did so to secure access to documents; he was successful at first instance.
[40] The decision of the motion judge (Van Every (Litigation guardian of) v. Findlay, [2018] O.J. No. 3611, 2018 ONSC 4213 (S.C.J.)) was overturned by the Divisional Court. The court concluded that Findlay had access to the relevant documents through the documentary discovery process in the solicitor's negligence claim: Van Every (2019) at para. 3. As a result, it was not necessary to vary the sealing order.
[41] The sealing order was described by the Divisional Court has having been made "to protect privacy and preserve privilege": at para. 1. Neither the Divisional Court's decision nor the decision at first instance include the basis for the April 2016 sealing order. As a result, the Divisional Court decision is of limited assistance.
[42] The second Ontario decision upon which the Plaintiffs rely is that of Mew J. in Schuringa. Ms. Schuringa was catastrophically injured in a single-vehicle car accident. Together with her family members, Ms. Schuringa commenced an action against General Motors based on a flawed ignition system in the car she was driving. Other defendants included the municipality in which the accident occurred and the Attorney General for Canada.
[43] The Schuringas' claim was resolved through negotiation with a team of individuals who were part of the General Motors Ignition Switch Claims Resolution Facility ("Facility"). The monetary amount paid to settle the Schuringas' claims was a portion of the $594,500,000 offered by General Motors in 399 cases in which claimants were deemed by the Facility to be eligible for compensation. Acceptance of a payment through the Facility process required claimants to waive their right to sue General Motors.
[44] The terms of the settlement reached by the Schuringas with the Facility included a non-disclosure clause. Disclosure of the amount of the settlement was prohibited except as necessary to comply with a court order, government inquiry, and applicable laws or regulations; or as might be required for legal, tax, or financial planning purposes. General Motors did not offer any specific rationale for its insistence on confidentiality.
[45] Mew J. noted, at para. 34, that "confidentiality clauses in releases executed as part of the settlement of personal injury claims are not unusual".
[46] In addition to considering the terms of the settlement imposed by General Motors, Mew J. considered the request made by Ms. Schuringa's father (one of the Family Law Act plaintiffs) for the settlement amounts to remain confidential. The father did not want his family to be further exposed to unwanted attention.
[47] Ms. Schuringa was an adult when she was injured in the car accident. For the purpose of the civil action, she was represented by a litigation guardian. In a separate proceeding, steps were being taken to have Ms. Schuringa's parents appointed as her guardians of property and for approval of a management plan.
[48] At the request of Mew J., the Office of the Public Guardian and Trustee ("PGT") provided written comments with respect to the management of the settlement funds and the amount of the solicitor-client account for which approval was sought. The PGT also commented on the request for a sealing order.
[49] For two reasons, the PGT opposed the request for a sealing order. First, the PGT submitted that a sealing order would prevent the guardians of property and the court in the related proceeding from ensuring that there was an accurate review of the financial management of Ms. Schuringa's settlement funds. Second, the PGT submitted that a sealing order was disproportionate to the privacy issues in question.
[50] Mew J. granted the sealing order. He distinguished the matter before him from the circumstances in Leitch: paras. 43-48. Mew J. emphasized that the settlement negotiated with the Facility was conditional upon the execution of a release which included a non-disclosure clause; the settlement in Leitch was not. The Schuringas and other claimants involved with the Facility had not engaged in typical litigation activities, such as examinations for discovery, motions, or trials; whereas the parties in Leitch had done so.
[51] I pause to note that, as in Leitch, the parties to the Actions in this matter engaged in typical litigation activities. The Settlement was negotiated in that context.
[52] Mew J. was also aware of a California proceeding in which a sealing and/or redaction order was made with respect to the settlement of a General Motors ignition switch claim. The California court concluded that (a) "there was an overriding interest in the financial privacy of the settlement and the contractual confidentiality provision contained in the settlement agreement", and (b) those interests "overcame the right of public access to the documents and information relating to the monetary amounts involved": para. 53.
[53] There are similarities between the settlement reached in Van Every and the one in Schuringa. Both settlements were reached in an out-of-court negotiation process. In Van Every, the settlement resulted from negotiations between the injured party's counsel and an accident benefits insurer; the settlement was not reached in the context of litigation.
[54] In Schuringa, the settlement resulted from negotiations, between the injured party's counsel and the Facility, that were independent of the court process. The Facility was described by Mew J. as a "non-adversarial compensation programme designed to settle eligible claims": para. 47. As a term of the settlement, the Schuringas had to waive their right to pursue the lawsuit they had commenced in Ontario. The lawsuit had not, in any event, progressed beyond the pleadings stage.
[55] The third Ontario decision cited by the Plaintiffs is Mohamud v. Cannon, [2012] O.J. No. 4119, 2012 ONSC 4942. Spies J. issued a single-paragraph, supplementary endorsement on a motion, in writing, for approval of an infant settlement. In that endorsement, Spies J. highlighted that it is not unusual for parties to litigation to agree to keep the terms of a settlement confidential.
[56] Spies J. acknowledged that the redaction order requested was not a "drastic remedy": at para. 1. She concluded that an agreement to keep the terms of a settlement confidential is not a basis for the redaction of settlement figures from the motion record or for the record to be sealed in its entirety. Additional evidence was necessary to support the redaction order requested.
[57] In their statement of law, the Plaintiffs cite two decisions from each of British Columbia and Alberta (the "Western Decisions"). A review of those decisions follows.
5. Court Approval and Sealing Orders -- British Columbia and Alberta
[58] The Plaintiffs submit that the jurisprudence in Canada on sealing orders is "split" with respect to whether a sealing or redaction order will be granted if requested on a motion or an application for approval of a settlement on behalf of a party under disability. I disagree.
[59] The Western Decisions demonstrate that (a) the open court principle is equally as important in British Columbia and Alberta as it is in Ontario; and (b) sealing or redaction orders are exceptional remedies in those provinces, just as they are in Ontario. There is, at least to that extent, consistency in the jurisprudence from each of the three provinces.
a) British Columbia
i) Governing statute and Rules of Procedure
[60] In British Columbia, the requirement to obtain court approval of a settlement on behalf of an infant is found in s. 40 of the Infants Act, R.S.B.C. 1996, c. 223. That section sets out the procedure to be followed by the litigation guardian for an infant when a settlement is reached. The procedure, including the extent of the involvement of the Public Guardian and Trustee, depends on the monetary amount of the settlement. Court approval is not required for every settlement reached on behalf of an infant.
[61] The Supreme Court Civil Rules, B.C. Reg. 168/2009 ("B.C. Rules") address the representation of a person under disability: rule 20-2(3). The B.C. Rules also set out the procedure on a motion for approval of a settlement reached on behalf of a person under disability (adults and minors): rules 20-2(17)-(18).
[62] The involvement of the Public Guardian and Trustee is not addressed in the B.C. Rules; it is only addressed in the Infants Act.
ii) British Columbia decisions
[63] The first decision the Plaintiffs rely on is Renaerts (Guardian ad litem of) v. Korn, [1998] B.C.J. No. 3223, [1998] 9 W.W.R. 499 (S.C), which pre-dates Sierra Club. In Renaerts, the motion judge recognized that the inclusion of a confidentiality clause as a term of a settlement is a compelling reason to consider granting a request for a sealing order. Ultimately, however, the request for a permanent sealing order was denied because of the importance of the open court principle.
[64] The motion judge said that the intent of the Infants Act is "that infant settlements . . . be open to scrutiny by the public in order that the public may be assured that the best interests of infant plaintiffs have been reasonably protected": para. 74. The motion judge concluded that it would not be appropriate for the court to enforce agreements that have the effect of defeating the intent of the legislation: para. 75.
[65] In Renaerts, the settlement was approved, as was the solicitor-client account of plaintiffs' counsel. In addition, a temporary sealing order (45 days in duration) was granted. The defendant hospital had argued strongly for a permanent sealing order. The temporary sealing order was granted to give the defendant hospital an opportunity to appeal the decision at first instance. There does not appear to be any subsequent history indicating whether the issue of the sealing order was pursued by the defendant physicians.
[66] In British Columbia in 2009, a Practice Direction in force contemplated sealing court materials and/or holding in camera hearings in appropriate circumstances: McDonald v. Queen of the North (Ship), [2009] B.C.J. No. 972, 2009 BCSC 646, at para. 6. On their motion for approval of a settlement, the infant plaintiffs in McDonald requested a sealing order. The terms of the settlement did not include a confidentiality clause.
[67] The only reason provided in support of the request for a sealing order was that the infant plaintiffs did not want members of the public, including other students at their respective schools, to know the amount of the settlement. The motion judge noted that there was no evidence before the court as to the type of harm the infant plaintiffs might suffer if the amount of the settlement were disclosed. He acknowledged that the case had garnered a lot of public interest: at para. 10.
[68] The request for a sealing order and that the approval motion be heard in camera were both dismissed. In refusing to grant that relief, Joyce J. followed the reasoning in Renaerts. He concluded that neither the media attention nor the infant claimants' privacy interests were enough to grant either form of relief: paras. 9-10.
b) Alberta
i) Governing statute and Rules of Procedure
[69] In Alberta, the approval of a settlement on behalf of a minor is governed by s. 4 of the Minors Property Act, S.A. 2004, c. M-18.1 ("MPA"). Under that section, a settlement on behalf of a minor is binding on the minor only if the settlement is "confirmed" by the court on an application. The court is to "confirm the settlement if in the Court's opinion it is in the minor's best interest to do so": s. 4(2).
[70] The Alberta Rules of Court, Alta. Reg. 124/2010, address the requirement for a litigation representative of a party under disability to obtain court approval of a settlement on behalf of that party. A litigation representative may only settle, discontinue, or abandon an action on behalf of a party under disability if they have court approval to do so: rule 2.19.
ii) Alberta decisions
[71] In Milne (Next Friend of) v. Pfizer Inc., [2005] A.J. No. 507, 2005 ABQB 236, 51 Alta. L.R. (4th) 52 (Q.B.) a minor's representatives (his parents) sought approval of a settlement that included a confidentiality clause. In addition, the representatives sought an order banning the identification of the plaintiffs' names (by substituting initials for the names) and a sealing order.
[72] The request for a publication ban was dismissed. Veit J. concluded that the plaintiffs' desire to avoid publicity and any unwanted solicitation was not a basis for limiting the public's right to monitor activities in the courtroom or to interfere with the media's rights on behalf of the community: para. 24.
[73] Veit J. concluded that s. 4 of the MPA gave the court a discretion to either approve a settlement or reject it; that section did not clothe the court with the jurisdiction to modify the terms of the settlement. She concluded that it was therefore necessary for the court to determine "whether the confidentiality portion of the agreement is so repugnant that a settlement that in all other respects is in the minor's best interests should be rejected because of the confidentiality agreement": at para. 46.
[74] Veit J. held that it was not open to her to approve all aspects of the settlement without granting a sealing order. At para. 8, she said: "The material before the court establishes that confidentiality is an integral component of the offered settlement."
[75] At para. 48, Veit J. highlighted that it was only because of the governing legislation (the MPA) that the court was involved in the oversight of settlements on behalf of minors. She referred to proposed changes to the legislation. She noted that the changes eliminating court oversight had not been enacted.
[76] Veit J. discussed the difference between the treatment afforded adult plaintiffs and that afforded infant plaintiffs in the context of settlement negotiations and the court approval process. At para. 49, she said the following:
An adult who has commenced legal proceedings can accept a settlement that contains a confidentiality agreement. Mr. and Ms. Milne are therefore perfectly at liberty to accept the confidentiality agreement insofar as their own claims are concerned. In a justice system that prizes equality, it is problematic to deny to minors rights available to adults. It is only in exceptional situations, such as where -- paradoxically -- the recognition of rights equal to those adults enjoy would negatively affect the minor, or in situations where the minor does not have sufficient development to be able to take advantage of the right, that minors should have fewer rights than adults; typically, minors require more rights, more protection, than adults.
[77] Veit J. considered whether the minor plaintiff would be negatively affected if she extended to him the same rights his parents enjoyed with respect to the confidentiality agreement. At para. 50, she concluded that he would not: "On the contrary, it is appropriate to extend the right of confidentiality to him in order to give him both the benefit of the settlement, and protection from the need to field what might be tricky inquiries concerning the basis for the settlement."
[78] The settlement was approved on an interlocutory basis only. A final determination on the motion could not be made without a full hearing on the request for a sealing order. At para. 53, Veit J. emphasized that the minor's representatives were required to "engage the broader ability of the community to challenge the court's decision [on this issue]". The minor's representatives were directed to follow the court's system for notification of the media of the date the court would hear the application for a sealing order.
[79] If the request in Milne for a sealing order proceeded to oral argument (i.e., following broader notice being given of the hearing), then the substantive decision in that regard is not before the court. The subsequent history of Milne appears not to be reported and the court is not aware of the ultimate outcome.
[80] The procedure followed in Milne is in keeping with the procedure prescribed by Grace J. in Leitch in two ways. First, the Public Trustee was represented and made submissions on the return of the application in Milne. Second, broad notice of the return date for the oral hearing was required -- allowing the community and the media to become engaged with respect to the request for a sealing order.
[81] The Plaintiffs also rely on the decision of Dunlop J. in Athwal (Litigation representative of) v. Mather, [2019] A.J. No. 1166, 2019 ABQB 676 (Q.B.). At age four, the minor plaintiff suffered a brain injury following dental treatment. After the minor's claim and those of her family members were settled, an application was made for a "restricted court access order": at para. 1. The application was made prior to the court hearing the related motion for approval of the settlement of the minor plaintiffs' claims (i.e., those of the injured plaintiff and her siblings).
[82] The plaintiffs sought an order sealing the supporting affidavits (not yet filed on the motion), the order made, and the record of the hearing. They also asked for an order prohibiting anyone from obtaining a transcript of the proceedings.
[83] Before considering the substantive issues, Dunlop J. noted that the plaintiffs had followed the procedure required under the Alberta Rules. The plaintiffs had provided notice to the media: para. 6.
[84] Dunlop J. relied on the evidence of the litigation guardian and concluded that there was a real and substantial risk that the plaintiffs would "lose" their settlement if the confidentiality provisions of the settlement were not supported by a restricted court access order: at para. 19. There is, however, no discussion of the litigation guardian's evidence in that regard.
[85] I note that the finding made about the importance of confidentiality as a term of the settlement is, at a minimum, like that made by Veit J. in Milne -- that confidentiality was an integral component of the settlement.
[86] Dunlop J. identified the two public interests at stake: (a) supporting settlements, including the confidentiality with which settlement negotiations are conducted; and (b) the protection of the privacy of children: paras. 20, 21.
[87] Dunlop J. relied on the decision in Milne and concluded that a restricted court access order was warranted. The order was confined to the amount of the settlement, the proposed division of the settlement funds, and the terms of the contingency fee retainer agreement for which approval was also sought: paras. 27, 28.
[88] The proposed division of the settlement funds was included because, if disclosed, that information would allow for the amount of the settlement to be calculated. The contingency fee retainer agreement was included because the amount of the settlement could be calculated from a combination of the terms of that agreement and the fees proposed for the solicitor-client account for which approval was also sought: para. 28.
[89] Dunlop J. also concluded that without a restricted access order there was a real and substantial risk to the injured plaintiff's personal privacy with respect to her health information: para. 22. Yet, he also concluded that it would not be appropriate for the restricted access order to include the injured plaintiff's medical information or the proposed solicitor-client account (i.e., fees and disbursements): at para. 33. Most of the loss of privacy had already occurred because of the contents of the statement of claim and the media coverage. That harm would not be reversed by a restricted court access order.
[90] The plaintiffs were ordered to serve and file a supplementary affidavit setting out only the information subject to the restricted court access order. The supplementary affidavit was ordered sealed.
[91] At paras. 42-43, Dunlop J. outlined the process for the approval of the settlement in open court. He refused to close the courtroom unless it proved impossible to conduct the hearing without mentioning, directly or indirectly, the dollar amount of the settlement. If that proved impossible, he would consider making a restricted access order with respect to that information.
[92] Summarized immediately below are the principles that emerge from this review of the decisions from Ontario, British Columbia, and Alberta.
6. Procedural Requirements and Substantive Principles
a) Procedural requirements
[93] A motion or an application for a redaction or sealing order shall be made on notice to the opposing parties and the Children's Lawyer (for a minor) or the Public Guardian and Trustee (for an adult under disability). The motion or application shall be returnable in open court for oral argument.
[94] In Ontario, the court must consider whether notice of the motion or application ought to be given to anyone other than the parties (i.e., the public and/or the media): Leitch, at para. 12. There is no express authority mandating that such notice be given.
[95] The requirement for the court to "consider" such broader notice is, however, in keeping with this court's Consolidated Provincial Practice Direction, as it relates to publication bans. Part VI, Section 4, ss. 107-115 prescribe the procedure for notice to the media in all civil, criminal, and family proceedings where the relief sought includes a discretionary publication ban. As part of that procedure, the court has the discretion to dispense with the requirement to serve notice to the media: s. 109.
[96] Returning to motions or applications for approval of a settlement, if a redaction order is sought, the moving party shall file with the court both an unredacted, sealed copy and a redacted copy of the record. It is the responsibility of the moving party to identify the portions of the record that the party requests be redacted and therefore concealed from the public.
[97] These procedural requirements are subject to rule 1.04 of the Rules, which mandates that the court shall construe the Rules liberally to secure the just, most expeditious and least expensive determination of the motion or application. A party may seek an order dispensing with one or more of these procedural requirements. Evidence is essential to support a request for such relief.
b) Substantive principles
[98] Several substantive principles specific to motions or applications for approval of a settlement on behalf of a party under disability also emerge from the decisions discussed above. Those principles include the following:
- settlements reached in the context of typical litigation activities may be treated differently than settlements reached in other contexts;
- in the absence of other grounds, an agreement that the plaintiffs shall keep the terms of a settlement confidential (with exceptions provided for disclosure to their legal and financial representatives, or as required by law or court order) is not a sufficient basis for a sealing or redaction order; and
- in the absence of other grounds, one or more of media attention, the avoidance of publicity, and unwanted solicitation or inquiry are not sufficient bases for a sealing or redaction order.
[99] I have not included a substantive principle related to confidentiality as an integral component of the settlement. I recognize that consideration has been given to that concept: Milne, Athwal in Alberta. That approach is contrasted with the one taken in British Columbia. For example, in Renaerts, the motion judge approved the monetary and other aspects of the settlement but refused to grant a permanent sealing order, even though the terms of the settlement included a confidentiality clause.
[100] There is nothing in the Ontario decisions upon which the Plaintiffs rely to suggest that, when considering the terms of a settlement that include a confidentiality clause, this court must take the all-or-nothing approach adopted by Veit J. in Milne.
[101] In Schuringa, Mew J. emphasized that the settlement negotiated with the Facility was conditional upon the execution of a release which included a non-disclosure clause. I do not interpret Schuringa as holding that where confidentiality is an integral component of a settlement, that factor alone is sufficient for a sealing or redaction order to be granted. Mew J. was careful to identify several factors on which he relied to grant a sealing order. Those factors included (a) that the settlement was not reached through typical litigation activities and (b) the emphasis placed by a California court on confidentiality when it approved the settlement of a claim made in that State against General Motors.
7. Application of the Substantive Principles to the Plaintiffs' Motion
[102] Before turning to the application of these substantive principles to the Plaintiffs' request for a redaction order, I shall deal briefly with the procedure followed on this motion.
[103] The Plaintiffs did not follow the procedure set out in Leitch. They did not serve the original and supplementary motion records on the Children's Lawyer. The Plaintiffs proceeded with a motion in writing as opposed to an oral hearing.
[104] For the reasons set out in the penultimate section of this ruling, I am satisfied that it is reasonable and appropriate to (a) dispense with service of the motion materials on the Children's Lawyer; (b) proceed with the motion in writing; and (c) decide the motion without requiring the Plaintiffs to serve wider notice of it.
[105] The first substantive issue to be determined is whether the Plaintiffs have satisfied the part one of the Sierra Club test.
a) Part One of Sierra Club -- Serious risk to an important interest
[106] To satisfy the first part of the Sierra Club test, the Plaintiffs must demonstrate that a redaction order is necessary to prevent a serious risk to an important public interest and that alternative measures are insufficient to prevent that risk: at para. 53.
[107] The grounds the Plaintiffs relied on in support of their initial request for a sealing order were set out in a single paragraph in their notice of motion. Those grounds were limited to (a) a confidentiality clause said to be included in the minutes of settlement ("Minutes"); and (b) reference to "substantial publicity and media coverage" garnered by the collision and Dr. Natsis' criminal proceedings. In their original materials, the Plaintiffs did not identify an important public interest at serious risk if a sealing order was not made.
[108] After revising the relief sought to include a redaction order, the Plaintiffs filed a statement of law. They therein identified three important interests which they submit are at serious risk if a redaction order is not made: (a) settlement privilege; (b) confidentiality clauses in settlement agreements; and (c) the privacy of litigants.
[109] Only if the Plaintiffs establish that one or more of those important public interests is engaged and at serious risk, absent a redaction order, does it become necessary to move to the second part of the Sierra Club test. At that stage, the court weighs the salutary effects of a redaction order against its deleterious effects on the open court principle.
i) Settlement privilege
[110] I conclude that the Plaintiffs have not established that the important public interest in settlement privilege is at serious risk if a redaction order is not made.
[111] The Settlement is reflected in the Minutes, a document signed on behalf of all parties to the Actions. The lone defendant who is not contributing to the monetary component of the Settlement is aware of its terms.
[112] Public interest in maintaining settlement privilege exists because "[s]ettlements allow parties to reach a mutually acceptable resolution to their dispute without prolonging the personal and public expense and time involved in litigation": Sable Offshore Energy Inc. v. Ameron International Corp., [2013] 2 S.C.R. 623, [2013] S.C.J. No. 37, 2013 SCC 37, at para. 11.
[113] Settlement privilege can, in any event, be overcome if a competing public interest outweighs the interest in encouraging settlements: Sable Offshore, at para. 19, quoting from Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, [2005] B.C.J. No. 5, 2005 BCCA 4, 207 B.C.A.C. 54 (C.A.), at para. 20. For example, these countervailing interests have been found to include preventing a plaintiff from being overcompensated (Dos Santos).
[114] None of the evidence from either of Ms. Carroll or Plaintiffs' Counsel ("Mr. Yegendorf") addresses settlement privilege. The Plaintiffs' statement of law does not expand on the important public interest in settlement privilege. The Plaintiffs have not persuaded me that settlement privilege is an important public interest at serious risk in this case.
ii) Confidentiality clauses in settlement agreements
[115] I also conclude that the Plaintiffs have not established that the important public interest in confidentiality clauses in settlement agreements is at serious risk if a redaction order is not made -- the terms of the Settlement do not include a confidentiality clause.
[116] In para. 99, above, I concluded that the all-or-nothing approach taken by Veit J. in Milne is not applicable in Ontario. Even if I am wrong in that regard, I find that confidentiality is not an integral component of the Settlement. There is no risk to the Plaintiffs that the Settlement will be lost if a redaction order is not granted. The prior approval of Muiredach's Settlement does not preclude the court from exercising its discretion to either grant or refuse the request for a redaction order.
[117] In reaching the conclusions set out above, I rely on the contents of the settlement documents and the conduct of the parties.
-- The Minutes of Settlement
[118] When the Plaintiffs first requested a sealing order, they relied on the purported inclusion of a confidentiality clause in the Minutes. Three affidavits from Plaintiffs' Counsel were filed in support of this motion. In his first affidavit, sworn in October 2019, Mr. Yegendorf repeats one of the grounds listed in the notice of motion -- that the Minutes include a confidentiality clause.
[119] A copy of the Minutes is an exhibit to Mr. Yegendorf's first affidavit. The Minutes
- do not include a confidentiality clause;
- outline the relief the Plaintiffs were to seek on the motion for approval of Muiredach's Settlement; and
- require the Plaintiffs to bring one motion (in the Actions) for an order approving Muiredach's Settlement, dismissing the Actions and crossclaims without costs, and providing that the motion record be sealed in its entirety.
[120] In the first of her two affidavits, Ms. Carroll does not refer to either the Minutes or a confidentiality clause. The focus of her first affidavit is the substance of Muiredach's Settlement.
[121] In Milne, the terms of the settlement made it clear that confidentiality was an "integral component of the offered settlement": at para. 8. Here, the terms of the Minutes are distinguishable from the settlement terms in Milne. Not only do the Minutes not include a confidentiality clause, there is nothing in the Minutes to support the conclusion that confidentiality is an integral component of the settlement.
-- The full and final release
[122] The Minutes refer to a full and final release to be executed by the Plaintiffs which, it is said, shall include a confidentiality clause. A copy of the release was not included as part of the original motion record. Initially, there was no evidence as to the terms of the proposed release or why a sealing order was, as stated by Mr. Yegendorf, required to "uphold the integrity" of a confidentiality clause, if included in the proposed release.
[123] A copy of the full and final release executed by the Plaintiffs ("Release") is an exhibit to Ms. Carroll's second affidavit. By the date that affidavit was sworn, the Plaintiffs had revised the relief requested from a sealing order to a redaction order.
[124] The Release was signed by the adult plaintiffs on various dates in early November 2019 -- after the Plaintiffs' original motion record was delivered and before their supplementary motion record was delivered. The second affidavit from each of Ms. Carroll and Mr. Yegendorf was sworn in December 2019, approximately five to six weeks after the Release was executed. There is no evidence as to whether the terms of the Release were agreed upon by the parties before or after the Plaintiffs' original motion record was delivered.
[125] The Release does not include any reference to the full amount of the Settlement. In the Release, the consideration from the Defendants is described as "TWO DOLLARS and other good and valuable consideration" (all upper case, in original). The Release includes a confidentiality clause ("the Clause"), which reads as follows:
AND IT IS FURTHER AGREED AND UNDERSTOOD that it is fundamental to the settlement of the claims advanced by the Releasors that the terms of this Release and the terms of the settlement are to be kept strictly confidential and, without restricting the generality of the foregoing, the Releasors hereby undertake not to disclose or discuss, directly or indirectly, the terms of the settlement, including the amount of the settlement with anyone, except their legal and financial representatives, or as required by law and ordered by the Court.
[126] The Clause excepts the Plaintiffs from their confidentiality obligations when disclosure is required by law. I find that the Rules of Civil Procedure, including rule 7.08, fall within the scope of that exception.
[127] Ms. Carroll's evidence with respect to the terms of the Settlement and the purported confidentiality clause is set out in her second affidavit:
- when the Settlement was reached, the Plaintiffs understood that the terms of the Settlement included a confidentiality clause; and
- Ms. Carroll understood that the Plaintiffs would not be permitted to disclose the terms and the amounts of the Settlement to "parties outside the lawsuits".
[128] There is nothing unusual about the inclusion of a confidentiality clause in the Release: Schuringa, at para. 34. Ms. Carroll's understanding of the Clause is in keeping with the type of confidentiality clause frequently seen in the terms of a settlement of a personal injury claim. Her understanding of the Clause does not support a finding that confidentiality is an integral component of the Settlement.
[129] I find that there is nothing unusual about the wording of the Clause. It recognizes that the Plaintiffs may be required by law to disclose the terms of the Settlement. To that extent, and more, the Plaintiffs are permitted to disclose those terms.
-- Conduct of the defendants
[130] Dr. Natsis supports, and the Steakhouse takes no position on, the request for a redaction order. Neither of those defendants filed responding materials or made submissions with respect to either the request for a sealing order or the request for a redaction order.
[131] If confidentiality of the terms of the Settlement were important to either Dr. Natsis or the Steakhouse, they could have done as the defendant hospital did in Renaerts. They could have delivered materials and made submissions on the motion. They could also have requested that a temporary sealing or redaction order be made to permit them to take steps, if necessary, to appeal the decision on the motion. They took none of those steps.
[132] Based on the conduct of Dr. Natsis and the Steakhouse, I draw an inference and find that, when the Minutes were signed and thereafter, when the Release was executed, those defendants were fully aware that (a) the Plaintiffs would, on the approval motion, be required to disclose the terms of Muiredach's Settlement and possibly the terms of the Settlement; (b) whether the sealing order referred to in the Minutes would be granted would be a matter of the court's discretion; and (c) confidentiality was not an integral component of the Settlement.
[133] I turn to the third and final important public interest upon which the Plaintiffs rely with respect to the first part of the Sierra Club test for a sealing order -- the privacy of litigants.
iii) The privacy of litigants
[134] Lastly, I conclude that the Plaintiffs have failed to establish that the important public interest in the privacy of litigants is at serious risk of harm if a redaction order is not made.
[135] In her first affidavit, Ms. Carroll describes how hard she and the children have worked to move on with their respective lives. She is rightfully proud of the academic, athletic, and other successes the children have achieved. I understand the importance to Ms. Carroll, the children, and all of Mr. Casey's family members of putting the tragedy behind them, to the extent possible, with the resolution of the Actions.
[136] In her second affidavit, Ms. Carroll addresses the request for a redaction order. She emphasizes that her family seeks to recapture the privacy it lost after Mr. Casey's death. My finding that confidentiality is not an integral component of the Settlement does not detract from the importance the Plaintiffs place on maintaining their privacy, including with respect to the Settlement.
[137] In her second affidavit, Ms. Carroll eloquently describes how her family's life was under a microscope following Mr. Casey's death and throughout Dr. Natsis' criminal proceedings. Her children, who were ages 11, nine, and seven when their father was tragically killed, have been subjected to publicity for over eight years.
[138] In the same affidavit, Ms. Carroll describes how family, friends, work colleagues, and strangers have "constantly inquired" of her and the children about Mr. Casey's death, the criminal trial, Dr. Natsis' sentence and Dr. Natsis' application for parole. Ms. Carroll's wish, for herself and her family members, is that the settlement amounts remain private and that the family members avoid any further, unwanted attention.
[139] I note that "unwanted attention" (a) was the term used by the plaintiffs in support of the request for a sealing order in Schuringa; and (b) is akin to the publicity, unwanted solicitation, and tricky inquiries to which Veit J. referred in Milne.
[140] Mr. Yegendorf's second affidavit was filed after the Plaintiffs revised the relief they are seeking. The exhibits to that affidavit include copies of various online news articles from the Canadian Broadcasting Corporation and Ottawa Citizen websites. The articles span the period from August 2011, in the week following the collision, to December 2019, when Dr. Natsis was granted full parole. The articles are examples of how these events have garnered media attention.
[141] Even without the benefit of copies of the news articles, I would take judicial notice of the media attention that the criminal and other proceedings attracted. As extensive as that media attention has been, it is not, however, a measure of the public interest in the proceedings: Sierra Club, at paras. 82, 85.
[142] The public interest in the terms of the Settlement, however strong, is not the important public interest at stake and which the Plaintiffs rely on for the purpose of part one of the Sierra Club test; the interest at stake is the important public interest in the privacy of litigants and other participants in proceedings.
[143] The Ontario Court of Appeal recently addressed the privacy interests of litigants: see H. (M.E.) v. Williams (2012), 108 O.R. (3d) 321, [2012] O.J. No. 525, 2012 ONCA 35 (C.A.) and Donovan v. Sherman Estate, [2019] O.J. No. 2373, 2019 ONCA 376 (C.A.). From those decisions, it is clear that the Plaintiffs in this matter do not fall within the category of the litigants who are entitled to protection of their privacy.
[144] In Williams, Ms. H. intended to commence a proceeding for a divorce and corollary relief from her husband. Mr. Williams' criminal proceedings had garnered intense media coverage and brought attention to Ms. H. She sought various forms of relief to minimize the potential for dissemination to the public of her personal information once she commenced her family court proceeding.
[145] The important public interest Ms. H. relied on was that of access to the courts. She relied on the evidence of her treating psychiatrist to establish that her mental well-being would be affected if, to gain access to the court, her personal information formed part of the public record. The psychiatrist provided an affidavit and was cross-examined.
[146] At first instance, a limited ban on publication of certain information and a restricted sealing of the court file were ordered. With a minor exception for certain medical information, the restricted sealing and non-publication orders were set aside on appeal. The Court of Appeal concluded that Ms. H. had not satisfied the first part of the Sierra Club test. At para. 32, the court said:
Even if [freedom of expression and the open court principle] are only marginally engaged . . . restriction on media access to and publication in respect of court proceedings cannot be justified unless it is necessary to prevent a serious risk to a public interest. A court faced with a case like this one where decency suggests some kind of protection for the respondent must avoid the temptation to begin asking: where is the harm in allowing [Ms. H.] to proceed with some degree of anonymity and without her personal information being available to the media? Rather, the court must ask: has [Ms. H.] shown that without the protective orders she seeks there is a serious risk to the administration of justice?
[147] The Court of Appeal emphasized that a party seeking to limit freedom of expression and the open court principle has a "significant legal and evidentiary burden" to meet: at para. 34. Citing a number of Supreme Court of Canada decisions, the Court concluded that the evidence required to justify non-publication and sealing orders must be "convincing" and "subject to close scrutiny and meet rigorous standards": ibid, citations omitted.
[148] In Sherman, the murder of two prominent Toronto residents had garnered significant media attention. On a motion made without notice, the family members of the late Bernard and Honey Sherman obtained an order sealing court files related to the estates of those two individuals. Donovan, a journalist, was unsuccessful on a motion to terminate or vary the sealing order.
[149] In granting the sealing order, the motion judge identified two concerns. The first was the need to protect the privacy and dignity of the victims of violent crimes and their loved ones. The second was the risk of harm to those who had an interest in receiving or administering the assets of the deceased, because the murders of the Late Mr. and Mrs. Sherman remained unsolved. On appeal, the court (a) set aside the sealing orders and (b) refused to make a less-intrusive redaction order. The court concluded that the "necessity" element of the first part of the Sierra Club test had not been met: at para. 17.
[150] The court understood that the family members of the deceased, "having gone through the horrors of a sudden and violent death of loved ones", wanted to keep matters private: at para. 10. In the same paragraph, the court emphasized that the kind of interest that is capable of protection by a sealing or a redaction order must have a public interest component: "Personal concerns cannot, without more, justify an order sealing material that would normally be available to the public under the open court principle" (citations omitted, but including Williams, at para. 25).
[151] Like the individuals in Williams and Sherman, the Plaintiffs found themselves involved in matters that garnered significant media attention. Like the litigants in Sherman, the Plaintiffs suffered the sudden and tragic loss of a loved one. Understandably, the Plaintiffs are weary of the attention garnered by the various proceedings.
[152] In the words of the Court of Appeal in Williams, "decency suggests some kind of protection" be afforded the Plaintiffs: at para. 32. If decency were the only factor to be considered, the decision on this motion would have been made with ease, the reasons would be succinct, and the relief would have been granted. The law, however, requires much more than a consideration of decency; the court must consider whether the evidence of an important public interest at serious risk is convincing and, under close scrutiny, capable of meeting rigorous standards.
[153] The evidence upon which the Plaintiffs rely relates entirely to their personal concerns. The evidence does not provide any detail as to the harm the Plaintiffs might suffer, beyond unwanted attention, if a redaction order is not granted. There is no evidence from a health care professional, as there was in Williams, addressing how the well-being of one or more of the Plaintiffs may suffer if a redaction order is not granted.
[154] The Plaintiffs' evidence does not meet the high standard required for a sealing or redaction order to be granted. As legitimate and understandable as the Plaintiffs' personal concerns are, they are not enough to establish that the important public interest in the privacy of litigants and other participants is at serious risk if a redaction order is not granted.
-- Pleadings and the privacy of litigants
[155] Before leaving the subject of the privacy of litigants, I consider the extent to which the plaintiffs in any action are required, in their statement of claim, to disclose the particulars of the damages sought. The extent of the disclosure required detracts from the Plaintiffs' submissions with respect to the privacy interests of litigants: see Athwal, at para. 32.
[156] Copies of the statements of claim issued in each of the Actions are included in the record on this motion. Although there is a temporary sealing order, both documents are, in any event part of the public record; copies of those documents remain in the respective court files. The two pleadings include particulars as to the general damages sought by each plaintiff for loss of care, guidance, and companionship. In each of the Actions, the damages claimed under that heading alone exceed $1,000,000.
[157] In both actions, Ms. Carroll and the three children each claim damages for loss of financial support suffered as a result of Mr. Casey's death. All the Plaintiffs claim damages for out-of-pocket expenses. Ms. Carroll also claims damages for past and future loss of income. The amounts claimed by the Plaintiffs under those heads of damages are not included. Those amounts could and/or should have been included in the statements of claim: rule 25.06(9) of the Rules. The lack of particulars provided by the Plaintiffs in their pleadings cannot serve as an artificial shield behind which to conceal information from the public.
[158] Litigants are deemed to be aware of the Rules. The Plaintiffs are no exception. I find that the Plaintiffs were aware, when they commenced the Actions, that (a) their statements of claim would remain part of the public record, and (b) they had an obligation to fully particularize, under each head of damages, the amount of damages they sought.
[159] When they commenced the Actions, the Plaintiffs could not have been certain that the proceedings would be resolved by way of negotiated settlement. Had the Actions proceeded to trial, the full amount of the damages awarded to the Plaintiffs would have been available to the public.
[160] Nor could the Plaintiffs have expected that if the Actions were resolved by way of negotiated settlement, they would be entitled to conceal from the public the terms of a settlement of the claims on behalf of minor plaintiffs. Rule 7.08 of the Rules is silent as to whether an approval motion may proceed in writing. It is only because the relief sought is on consent that approval motions proceed in writing: rule 37.12(1). While a motion in writing permits the parties to avoid having the matter determined in open court, it does not mean that the record will be concealed from the public.
[161] I find that the Plaintiffs had no expectation of privacy when they commenced the Actions. The Plaintiffs have failed to articulate how the Settlement changes their expectations in that regard. The desire to avoid any further media or other attention, although understandable, is simply not enough to support a redaction order.
iv) Summary -- Part One of Sierra Club
[162] The Plaintiffs have failed to establish that any one of the three important public interests they rely on is at serious risk if a redaction order is not granted.
b) Part Two of Sierra Club -- Weighing public interest and open court principle
[163] As the Plaintiffs have not satisfied the first part of the test, it is not necessary to determine the second part of the test. I return, instead, to the procedural matters that need to be addressed to permit this motion to be determined in writing.
8. Procedural Requirements for the Plaintiffs' Request for a Redaction Order
[164] I do not distinguish between a request for a permanent sealing order of an entire affidavit or motion record and a request for the permanent redaction from the record of a portion of an affidavit, including an exhibit. Either form of relief, if granted, results in information being permanently concealed from the public.
[165] In ordinary circumstances, the Plaintiffs should bring their motion for a redaction order on notice to the Defendants (as they did) and in open court (the motion was made in writing). In addition, consideration must be given to whether broader notice is required.
[166] The Plaintiffs brought their motion in the fall of 2019. It was not until after the order consolidating the Actions was made, the Settlement was approved, and the parties were given an opportunity to file additional materials, that it was possible for the court to consider the request for a redaction order. That request is now being considered in anything but ordinary circumstances.
[167] On March 16, 2020 and because of COVID-19, the usual operations of the court were suspended. Initially, only matters deemed urgent were being heard by the court. As of April 2, 2020, the court expanded its operation. In a Notice to the Profession released on that date (the "Notice"), the court identified that it would, in limited circumstances, rely upon its inherent jurisdiction to relieve parties from compliance with procedural rules, regulations, and statutes: s. 96 of the Constitution Act, 1867, 30 & 31 Vict., c. 3 as confirmed in s. 11(2) of the CJA.
[168] In the Notice, the court said that it would relieve parties from compliance in that regard if it is
- just or equitable to do so;
- reasonable and necessary to control the court's own process during this time of emergency;
- required to render justice between litigants;
- essential to prevent obstruction and abuse of the court; or
- necessary to secure convenience, expeditiousness and efficiency in the administration of justice.
[169] For the following reasons, I find that it is appropriate to (a) dispense with the requirement for the Plaintiffs to serve the relevant materials on the Children's Lawyer, (b) rule on the request for a redaction order without an oral hearing, and (c) not require the Plaintiffs to serve wider notice of their motion.
[170] First, I consider the convenience, expeditiousness, and efficiency in the administration of justice. The settlement of the Actions was reached in September 2019. The Plaintiffs filed their original record in the latter half of the fall of 2019. The Settlement was approved in January 2020, after the Plaintiffs filed additional evidence in support of the request for court approval. The request for a sealing order was not determined at that time. The parties were given an opportunity to consider the relief they would ultimately request and to file additional materials.
[171] The Actions will not be concluded until the request for a redaction order is determined. If an oral hearing is required, that hearing may not proceed for several months.
[172] I find there would be no benefit to the parties to delay the determination of the request for a redaction order. The parties had several months to consider the nature of the relief requested. The Plaintiffs revised the relief requested from a permanent sealing order to a permanent redaction order. The parties were given an opportunity to file additional materials; only the Plaintiffs availed themselves of that opportunity. Proceeding in writing does not deprive the parties of either the opportunity to provide the court with a comprehensive record or to make fulsome submissions.
[173] I recognize that proceeding in writing at this time deprives the Children's Lawyer of the opportunity to make submissions. Requiring the Plaintiffs to serve materials on the Children's Lawyer would lengthen the proceeding unnecessarily.
[174] I find that the benefit to the parties of bringing the Actions to a conclusion outweighs the delay that would result from the involvement of the Children's Lawyer in the proceeding.
[175] Second, I find that it is just and equitable to dispense with the procedural requirements established in Leitch. The Plaintiffs were aware of the decision in Leitch. They could have served their materials on the Children's Lawyer, arranged for broader notice of their motion to be given, and scheduled a date for an oral hearing. Alternatively, the Plaintiffs could have requested that the court follow that procedure. The Plaintiffs did neither. The same is true of the Defendants. They could have taken, but chose not to take, steps to request that the procedure established in Leitch be followed.
[176] I draw an inference and find that the parties consent to the request for a redaction order being determined without an oral hearing.
[177] Lastly, I turn to consideration of "wider" notice of the motion. First, such notice is not mandatory; the court must consider it. Second, the Consolidated Provincial Practice Direction gives the court the discretion to dispense with the requirement for service of the requisite notice when a publication ban is requested. Third, there would be minimal, if any, practical purpose served if the motion were adjourned to facilitate wider notice being given and hold an oral hearing. The substantive relief requested is denied; neither the public nor the media are prejudiced by the outcome of the motion.
[178] The Plaintiffs are not required to provide wider notice of their motion.
9. Relief Granted
[179] Normally, the court's order would take immediate effect. One or more of the parties may, however, wish to take steps to challenge the order. For that reason, and because of the suspension of the court's usual operation, this order shall take effect 45 days following the date of its release. In the interim, the temporary sealing order already in effect shall continue and applies to all of the materials filed on the motion.
[180] As a result of the suspension of usual court operations, this ruling is being issued under my electronic signature. Once normal operations resume, a copy of this ruling shall be added to the court file.
[181] In summary, I order as follows:
- The Plaintiffs are granted leave to proceed in writing with the motion for a sealing or redaction order.
- The requirement for the Plaintiffs to serve a copy of the motion materials (i.e., motion record, supplementary records, and statement of law) on the Office of the Children's Lawyer is dispensed with.
- The Plaintiffs' motion for a sealing or, in the alternative, redaction order is dismissed.
- The temporary sealing order shall remain in effect for 45 days following the date of this order, at which time that order shall expire.
- The temporary sealing order shall apply to all materials filed on the Plaintiffs' motion.
- Because of the COVID-19 emergency, this order is being issued under my electronic signature. This order is effective, binding and enforceable without further formality at this time. Once normal operations resume, a copy of this order shall be filed with the court.
[182] There shall be no costs on the motion.
[183] If there is anything arising from this ruling that the parties wish to address, they are to contact the Office of the Trial Co-ordinator to schedule a telephone case conference.
Motion dismissed.
Notes
1 Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 22.
2 Sierra Club v. Canada (Minister of Finance), 2002 SCC 41, [2002] S.C.R. 522, at para. 1.
3 Youth Criminal Justice Act, S.C. 2002, c. 1, s. 110.
4 Criminal Code, R.S.C. 1985, c. C-46, s. 486.4.
5 Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1, ss. 87(7)(c), (8), (9), 134(11).
6 See, for example: Jane Doe 72411 v. Morgan (2018), 143 O.R.(3d) 277, 2018 ONSC 6607, 53 C.C.L.T. (4th) 289 and D.B. Trust (Trustees of) v. J.B. (Litigation guardian of) (2009), 97 O.R. (3d) 544 (S.C.), respectively.
7 D.B. Trust, supra, note 6, at para. 12.
8 Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137(2).
9 Sierra Club, supra, note 2.
10 Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, at para. 92.
11 Jones v. Tsige (2012), 108 O.R. (3d) 241, 2012 ONCA 32, 287 O.A.C. 56.
12 Ibid, at para. 65.
13 Jane Doe 72511, supra, note 6.